Innasimuthu and three others vs Kandasami and six others

This Second Appeal is directed against the judgment of the Additional District Judge, Ramanathapuram at Madurai in A.S.No. 41 of 1982

confirming the judgment of the teamed Subordinate Judge, Ramanathapuram at Madurai in O.S.No. 136 of 1979. Defendants 7 to 10 in the suit

are the appellants in the present Second Appeal.

The suit was filed for partition by metes and bounds of the entire A Schedule property and to put the plaintiff in possession of his l/3rd share and

B schedule in equity. According to the plaintiff, B schedule property is part of the whole which is described as A schedule and the entire A

schedule property is joint family property belonging to one Chandran Chettiar and his two sons Sundararajan and Sakkatti alias Rajagopalan

namely, the third defendant in the suit. There was a suit for partition filed by Chandran Chettiar against his two sons in O.S.No. 34 of 1969 on the

file of the Sub Court, Ramanathapuram at Madurai and the present item was item 5 in the said suit. It was held in that suit that the said item was a

common joint family property and that Chandran, Sundararajan and the third defendant were each entitled to one-third share and a decree was

passed accordingly. The plaintiff through his guardian had purchased the one-third share in the entire property from the third defendant on

22.4.1960 and it was agreed among the three co-sharers that the B schedule property comprising four buildings was the one-third share

apportionable for the share of the third defendant and the B schedule property was under the possession of the third defendant. But there was no

division by metes and bounds of the entire property and the plaintiff had purchased the undivided one-third share. It was further contended that he

was not aware of the proceedings in O.S.No. 34 of 1969 and he came to know of it only two months backs prior to the suit, and he found that

even though preliminary decree for partition had been passed on 7.11.1973 itself no final decree had been passed. As such the properties have not

become divided. Therefore, according to the plaintiff, he was in joint possession of the property as a purchaser of the undivided one-third share

and in spite of repeated demands, no partition was effected. Chandran Chettiar died in 1974 and Sundararajan also died in April, 1979.

Defendants 1 and 2 are widow and. son of Sundararajan, while defendants 4 to 6 are daughters of Chandran Chettiar. The plaintiff would further

submit that defendants 7 to 10 claim to be alienees from Defendants 4 to 6 and that it was given out by defendants 4 to 10 as though late

Chandran Chettiar had executed a Will and alleged to have bequeathed the suit property to defendants 4 to 6. According to the plaintiff, the Will

under which defendants 4 to 6 claim was not genuine and was not executed by the testator in a sound and disposing state of mind. At any rate, the

plaintiff''s right as purchaser of one- third share cannot be affected by the alleged Will.

Defendants 1 to 6 remained absent and they were set exparte.

In the Written statement filed by the seventh defendant which was adopted by the eight defendant, it was contended that assuming that the

purchase by the plaintiff was true, the plaintiff cannot get any relief in the present suit inasmuch as there was already a proceeding pending for

division of some of properties among which the suit property was one. A preliminary decree having already been passed in that suit whatever right

the plaintiff''s vendor had, has to be worked out by the plaintiff only within the framework of the said preliminary decree and a separate suit for

partition was not maintainable. Admittedly, the family owns other properties also, and the suit for partition should comprise all the family properties

and the partition of some of the properties alone was not maintainable, and that the suit was bad for partial partition. According to the seventh

defendant, there were some disputes between the third defendant and his father Chandran Chettiar and the third defendant had contact with

persons who have no character and Chandran Chettiar was afraid of the behaviour of the third defendant and he wanted to safeguard the family

prestige and therefore he filed the suit for partition. Thereafter he had bequeathed his properties in favour of his daughters by executing a Will

dated 21.10.1970. Therefore, defendants 4 to 6 had inherited the said estate of Chandran Chettiar and they have also got into possession of the

family properties. According to the seventh defendant they had sold the properties in favour of defendants 7 to 10. Defendant 7 purchased

portions of the suit A schedule property on 7.3.1979 for valuable consideration and the ninth defendant has purchased another portion of the

property by virtue of sale deed dated 13.3.1979. 10th defendant has also purchased another portion of property by virtue of sale deed dated

16.3.1979. All of them having purchased their respective shares for valuable consideration, the plaintiff was not entitled to. seek for partition. It

was further contended that in equity, defendants 7,9 and 10 were entitled to ask for partition that the portion of the property alienated in their

favour should be allowed to the share of defendants 4 to 6. The plaintiff''s claim of having purchased the portion of the property comprised in A

schedule was also denied. According to the defendant the plaintiff has not stated the details about his purchase. The sale was only a sham and

nominal transaction and the plaintiff did not get any right or interest under the transaction. The sale was alleged to be in the year 1960 and the

plaintiff did not get any possession of the property either joint or separate and being an alienee he was not entitled to get possession of the

property. The plaintiff also did not take any steps to get possession of the property and his right if any under the sale deed was lost and became

extinguished by adverse possession by other co-owners.

On the basis of the said pleadings and the evidence both oral and documentary, the learned trial Judge held that even though the Will under

Ex.B.11 said to have executed in favour of defendants 4 to 6 was true and valid, yet held that the sale of the property in favour of the plaintiff by

one of the co-owners was true and valid and that the plaintiff was therefore entitled to maintain the suit for partition. The learned trial Judge held

that the suit was not bad for partial partition. With the result the suit was decreed as prayed for. On appeal also the learned appellate Judge agreed

with the findings of the trial Court and held that the suit was not bad for partial partition and the plaintiffs right had not become extinguished. Hence

the present appeal by defendants 7 to 10.

Mr.S.V. Jayaraman, learned Senior Counsel for the appellants mainly contends that in a suit for partition all the properties should have been

included. He would also submit that partial partition was not permissible under Hindu Law. He would rely on a judgment of the Supreme Court

reported in Kenchegowda (Since Deceased) by Legal representatives Vs. Siddegowda alias Motegowda, , and a judgment of a Division Bench of

the Calcutta High Court reported in Satchidananda Samanta Vs. Ranjan Kumar Basu and others, , in support of his contention that all joint

properties should be brought in hotch pot and a suit for partition of one of joint properties was not tenable even if share in that property has been

sold to a third party.

He also refers to the following passage in Mayne''s Hindu Law & Usage, 13th Edition, paragraph 412 which is as follows:

Alenee''s suit for partition: The alienee''s suit for partition must be one for the partition of the entire property and not for partition of any

specific interest for he acquires no interest therein and the coparcener who alienated had himself no such interest. He cannot sue for partition and

allotment to him Of his share of the property so alienated, nor is he entitled to any mesne profits in respect of his share between the date of his

purchase and the date of his suit for partition. Coparceners''s suit - The coparceners objecting the alienation may, without bringing a suit for general

partition, sue for a decree for their shares in the property alienated by the coparcener. In the suit challenging an alienation, the coparceners would

be granted possession of the properties subject to the equities in favour of the alienees being worked out in an independent action. The distinction

rests upon the ground that in a suit for partition by the purchaser, an account of the whole estate must be taken in order to see what interest, if any,

the alienor possess, but as the coparceners may wish to remain undivided amongst themselves, they are entitled to confine the suit between

themselves and the stranger purchaser to the property indispute.

The two judgments cited above rendered by the Supreme Court and the Division Bench of Calcutta High Court are proceedings arising out of

suits filed by the coparceners themselves seeking for partition and as such cannot be an authority for the proposition as to whether an alienee was

entitled to seek for partial partition with reference to the interest acquired by him.

As far as the right of the alienee to sue for partial partition, the view of this Court has always been consistent, in favour of the alienee.

A Full Bench of this Court in the judgment reported in Inburamsa Rowthan v. Theruvenkatasami Naick, ILR 34 Mad. 269, has held that when

certain items of family properties were conveyed by one of the two coparceners of a Hindu family to a stranger for purposes not binding on the

family, alienee may without instituting a general suit for partition of the entire family property, maintain an action for the partition of his share in the

said items.

Subsequently a Division Bench of this Court in a Judgment reported in Kandaswami v. Venkatarama, AIR 1933 Mad. 774, following the said

judgment in Inburamsa Rowthan v. Theruvenkatasami Naick, ILR 34 Mad. 269 supra held that even though as between members of a joint family

no suit for partial partition was maintainable, in the case of alienee, it was not necessary that he should seek for partition of the entire property. A

suit for partial partition was competent in respect of the items over which the alienees were claiming as tenants-in-common.

Yahya Ali, J. in the judgment reported in Subbarayudu v. Ramanaiah, AIR 1949 Mad. 235, held that an alienee from a coparcener of a joint

Hindu family can sue for partition of alienated share by filing a suit for partition.

In a subsequent judgment reported in M.S.P, Meyyappa Chettiar v. M. Meyyappa Chettiar, 1977 (1) M.L.J. 7, the question arose as to

whether the alienee of a certain item of the joint family property was entitled as of right to file a suit for partition. The Division Bench after

examining the issue in detail held that in a joint Hindu family every member had no doubt undivided share over the entirety of the joint family

property, but it was equally well established and recognised that even unpredictable and undivided share of a member of the Hindu family can be a

subject matter of the sale and the alienee in those circumstances has the right to seek for possession of that undivided share from the other

members of the joint family. It was further held that though the general and accepted principle of law was that a suit for partial partition will not lie

yet there were exceptions to that Rule and one such exception was in the case of alienee who files a suit for partial partition from one of the

members of the family. Such a suit was maintainable eventhough it had the characteristics of partial partition. Therefore, the contention of the

learned Senior Counsel that the alienee in the present case could not have filed the suit for partition and that he ought to have pursued his remedy

only by way of seeking equity for allotment of his share in the earlier suit for partition between the coparceners cannot be sustained. As far as this

Court is concerned, the entitlement of alienee to sue a coparcener separately for division of the share purchased by him has been held to be

perfectly valid in law and as such the contention raised by the learned counsel for the appellants cannot be sustained.

With the result, there are no merits in the above Second Appeal and the same is dismissed. No costs.